Peterson v. Minneapolis St. Ry. Co.

• Decision Date: 16 May 1952
• Docket Number: No. 35366,35366
• Citation: 236 Minn. 528,53 N.W.2d 817
• Court: Minnesota Supreme Court
• Parties: PETERSON v. MINNEAPOLIS ST. RY. CO.

Page 817

53 N.W.2d 817

236 Minn. 528

PETERSON v. MINNEAPOLIS ST. RY. CO.

No. 35366.

Supreme Court of Minnesota.

May 16, 1952.

Rehearing Denied June 24, 1952.

Syllabus by the Court.

1. Under the facts of the case, the court did not err in refusing to instruct the jury upon the issue of defendant's wilful and wanton negligence.

2. The court did not err in refusing to instruct the jury that defendant was negligent as a matter of law.

3. It was also a question for the jury to determine whether plaintiff was guilty of negligence under the circumstances.

4. The court did not err in refusing to give certain requested instructions.

Donald O. Wright, Minneapolis, for appellant.

Freeman, King, Larson & Peterson, Minneapolis, for respondent.

MAGNEY, Justice.

This is an appeal from an order denying plaintiff's motion for a new trial after verdict for defendant in an action to recover damages for personal injuries.

Plaintiff, Jens C. Peterson, suffered serious injury in a collision with one of defendant's streetcars about 10:30 p.m., February 12, 1948, at the west end of a viaduct which carries Glenwood avenue over the tracks of the Great Northern Railway Company and the Minneapolis & St. Louis Railroad Company in the city of Minneapolis. Plaintiff was an employe of the M. & St. L. and, at the time of the injury, was engaged in replacing the bulb in a red warning-light fixture at the west end of a girder which extends through the middle of the viaduct, dividing the eastbound and westbound lanes of motor and streetcar traffic over the viaduct. Plaintiff struck the left side of an eastbound streetcar as it passed close to the south side of the girder. Marks on the streetcar indicate that the point of contact was about 12 feet from the front of the car.

The viaduct is 205 feet long. The girder, which is 53 inches high, runs the entire length of the viaduct and rests upon a concrete base about 5 inches above the street level. The girder is 12 1/2 inches wide at the top and, including the concrete base, 23 1/2 inches wide at the bottom. At the west end of the girder there is a vertical board painted with black-and-white stripes. The fixture for the red warning light is above this board. The center of the lamp is 9 1/2 inches above the girder, 63 inches from the pavement.

The near rail of the eastbound streetcar track is 35 inches from the girder. The side of the streetcar projected 24 inches beyond the rail toward the girder. Thus, there was a clearance of 11 inches between the girder and the passing streetcar.

A pendant arc light hangs 39 feet 6 inches west of the west end of the viaduct above the trolley wires, a little nearer the eastbound trolley rail than the westbound one. The motorman of defendant's streetcar testified that as he approached the arc light from the west, up a slight incline to the viaduct, at 10 to 15 miles per hour, he could not see beyond the light, though he was looking ahead. He continued to look ahead after he passed the light, but did not see plaintiff until he was six feet from him. He was startled when he saw plaintiff and applied the emergency brakes. When he saw that plaintiff was clearing the front of the car by several inches, he released the brakes and coasted. He was unaware of the collision until he was informed by a passenger that plaintiff was lying on the tracks behind the car.

Plaintiff testified that he arrived at the viaduct five or ten minutes before the accident. He had removed a red-globed kerosene lamp which had been wired in front of the regular light and had placed it on the girder behind the light fixture slightly to the right. He was standing with his right side against the girder, facing north, moving a flashlight back and forth in his left hand, while with his right hand he was unbolting the hinged lens of the light fixture. He was wearing a gray cap and gray knee-length coat. He was not moving around. The motorman did not see the flashlight, nor did any of his passengers. The motorman testified that when he first saw plaintiff the latter was facing the girder, with his back toward approaching eastbound traffic.

1. Plaintiff assigns as error the refusal of the trial court to instruct the jury upon the issue of defendant's wilful and wanton negligence. The contention is not supported by the evidence. If defendant's motorman did not operate the streetcar with ordinary care after discovery of plaintiff's position of peril, the motorman was guilty of wilful and wanton negligence, and plaintiff's contributory negligence, if any, would not bar his recovery. Alger, Smith & Co. v. Duluth-Superior Traction Co., 93 Minn. 314, 101 N.W. 298. The evidence in the case at bar would not support a jury finding that the motorman discovered plaintiff's perilous position in time to stop the car or give an effective warning of the approach of the car. The only evidence upon the subject is the testimony of the motorman that he did not see plaintiff until he was 6 feet from plaintiff. No inference that the car could have been stopped or an effective warning given can be indulged. No issue of wilful and wanton negligence is presented by the evidence.

2. Plaintiff requested an instruction that the defendant was negligent as a matter of law, and refusal to give the instruction is assigned as error.

The duty of the operator of a streetcar has been stated in Wright v. Minneapolis St. Ry. Co., 222 Minn. 105, 112, 23 N.W.2d 347, 353:

'The duty of a motorman in operating and managing a streetcar is to exercise ordinary or reasonable care to avoid harm to others. Ordinary or reasonable care is care commensurate with the circumstances. A motorman must keep a reasonable lookout ahead so as to be able to take proper precautions to avoid accidents.'

And, as stated at 222 Minn. 113, 23 N.W.2d 354 '* * * A motorman is bound to maintain a lookout for people Where he ought ot know they are likely to be.' (Italics supplied.)

The care and prudence employed must be reasonable in the circumstances, but the operator of the streetcar may assume that workmen on the streets will not increase danger by failure to exercise ordinary care in lookout for streetcars, or by failure to get out of the way in time to avoid danger. 2 Nellis, Street Railways (2d ed.) § 407.

Plaintiff contends that reasonable men could not find that the motorman was exercising ordinary care in maintaining a lookout in front of the streetcar; that the only possible inference is that the motorman was not maintaining a lookout or plaintiff would have been discovered; but that, even if the testimony of the motorman that he was looking is given credence, he must have been negligent in proceeding blindly into an area where he could not see plaintiff in time to stop or in time to warm him of the streetcar's approach. In other words, it is argued that the motorman, in the exercise of ordinary care in the circumstances, would have seen plaintiff standing near the tracks, 40 feet from an arc light of unknown illuminating power, without warning lights visible to approaching traffic, in gray clothing, at a point which is not a crosswalk, and where the evidence does not disclose that pedestrians or workmen usually stand or work.

The weakness of this contention is that it would set a standard of reasonableness of lookout without regard to the circumstances disclosed by the evidence. The law does not require the motorman to see all or to take every possible precaution in lookout; his precaution is to be measured by that which appears likely in the usual course. Schmidt v. Steinway & H.P. Ry. Co., 132 N.Y. 566, 30 N.E. 389. 'The risk reasonably to be perceived defines the duty to be obeyed.' Nees v. Minneapolis St. Ry. Co., 218 Minn. 532, 538, 16 N.W.2d 758, 762. Where the pedestrian public makes but a limited use of the street, the public interest is subordinated to the necessities of street railway operation to some extent, and the street railway may properly operate its cars at greater speed and with a lesser degree of care. Wosika v. St. Paul City Ry. Co., 80 Minn. 364, 83 N.W. 386; see, Strutzel v. St. Paul City Ry. Co., 47 Minn. 543, 545, 50 N.W. 690, 691.

In Wright v. Minneapolis St. Ry. Co., 222 Minn. 105, 23 N.W.2d 347, cited by plaintiff, the motorman stopped his car so the front projected into a crosswalk. If the motorman had stopped before the crosswalk, he could have seen the crosswalk and could have seen plaintiff from the usual driving position. The streetcar was started without warning and struck a small boy immediately in front of the car and beyond the motorman's vision. This court recognized that the circumstances of the case defined the duty of lookout imposed on the motorman, and said, 222 Minn. 118, 23 N.W.2d 356:

'* * * Because the motorman knew that he was blocking the cross-walk, he should have anticipated that pedestrians crossing the street might pass along the side of the streetcar and in front of it to get across. Under those circumstances, he should have made such observation as was necessary to ascertain whether any pedestrians were passing or were about to pass in front of the streetcar and taken such precautions as were necessary to avoid injurying them. * * * If he had stopped where he should have, he could have made such an observation. Because stopping where he had no right to do so disabled the motorman under the circumstances from making a proper observation to his left while operating the car in a sitting position, it became incumbent on him to take such measures as would enable him to observe that it was safe to start before proceeding forward with the streetcar, or to give a timely and adequate warning that he intended to do so.'

Thus, it appears that the Wright case does not hold the motorman to a duty to see all, but to see what in the circumstances ordinary care requires him to see.

It is true that failure to see a pedestrian upon the street is usually evidence of negligence, requiring...